No. 20-16408 IN THE UNITED STATES COURT OF APPEALS FOR …

No. 20-16408

IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

NSO GROUP TECHNOLOGIES LIMITED;

Q CYBER TECHNOLOGIES LIMITED,

Defendants-Appellants,

v.

WHATSAPP INC., a Delaware corporation; FACEBOOK INC., a Delaware corporation,

Plaintiffs-Appellees.

On Appeal from the United States District Court

for the Northern District of California No. 4:19-cv-07123-PJH, Hon. Phyllis J. Hamilton

MOTION OF FOREIGN SOVEREIGN IMMUNITY SCHOLARS FOR LEAVE TO FILE BRIEF AS AMICI CURIAE IN SUPPORT OF

PLAINTIFFS-APPELLEES

Geoffrey M. Klineberg Bethan R. Jones KELLOGG, HANSEN, TODD, FIGEL & FREDERICK, P.L.L.C. 1615 M Street, N.W., Suite 400 Washington, D.C. 20036 (202) 326-7900 [email protected] [email protected]

Counsel for Amici Curiae

December 23, 2020

Case: 20-16408, 12/23/2020, ID: 11938264, DktEntry: 47-1, Page 1 of 4(1 of 37)

Pursuant to Federal Rule of Appellate Procedure 29(a)(2) and Ninth Circuit

Rule 29-3, amici Foreign Sovereign Immunity Scholars respectfully move for

leave to file the attached brief as amici curiae in support of Plaintiffs-Appellees.

Amici are experts in the law of foreign sovereign immunity, including foreign state

and foreign official immunity, and they have an interest in the correct

understanding and application of this body of law in U.S. courts. The following

professors seek leave to participate as amici in this case:

Sarah H. Cleveland is Louis Henkin Professor of Human and

Constitutional Rights at Columbia Law School. She served from 2009 to

2011 as Counselor on International Law to the Legal Adviser at the U.S.

Department of State and from 2012 to 2018 as Co-Coordinating Reporter

for the Restatement (Fourth) of the Foreign Relations Law.

William S. Dodge is Martin Luther King, Jr. Professor of Law and John

D. Ayer Chair in Business Law at the University of California, Davis,

School of Law. He served from 2011 to 2012 as Counselor on

International Law to the Legal Adviser at the U.S. Department of State

and from 2012 to 2018 as a Reporter for the Restatement (Fourth).

Chimène I. Keitner is Alfred & Hanna Fromm Chair in International and

Comparative Law at the University of California, Hastings College of the

Law. She served from 2016 to 2017 as Counselor on International Law


2

to the Legal Adviser at the U.S. Department of State and from 2013 to

2018 as an Adviser on Foreign Sovereign Immunity for the Restatement

(Fourth).

Appellees have consented to the filing of this brief, but counsel for Appellants

have indicated that they do not consent.

Through their academic work, amici are knowledgeable about the issues in

this case and believe their perspective may assist the Court. They raise arguments

different from those made by the parties and by other amici. Accordingly, amici

respectfully seek this Court’s leave to file the attached brief as amici curiae.

December 23, 2020

Respectfully submitted, /s/ Geoffrey M. Klineberg Geoffrey M. Klineberg Bethan R. Jones KELLOGG, HANSEN, TODD, FIGEL & FREDERICK, P.L.L.C. 1615 M Street, N.W., Suite 400 Washington, D.C. 20036 (202) 326-7900 [email protected] [email protected]



CERTIFICATE OF SERVICE

I certify that on, December 23, 2020, I electronically filed a copy of the

foregoing MOTION OF FOREIGN SOVEREIGN IMMUNITY SCHOLARS

FOR LEAVE TO FILE BRIEF AS AMICI CURIAE IN SUPPORT OF

PLAINTIFFS-APPELLEES with the Clerk of Court for the U.S. Court of

Appeals for the Ninth Circuit via the appellate CM/ECF system, which will send

electronic notification of to all registered CM/ECF users in this case.

/s/ Geoffrey M. Klineberg Geoffrey M. Klineberg


No. 20-16408

IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

NSO GROUP TECHNOLOGIES LIMITED;

Q CYBER TECHNOLOGIES LIMITED,

Defendants-Appellants,

v.

WHATSAPP INC., a Delaware corporation; FACEBOOK INC., a Delaware corporation,

Plaintiffs-Appellees.

On Appeal from the United States District Court

for the Northern District of California No. 4:19-cv-07123-PJH, Hon. Phyllis J. Hamilton

BRIEF OF FOREIGN SOVEREIGN IMMUNITY SCHOLARS AS AMICI CURIAE IN SUPPORT OF PLAINTIFFS-APPELLEES

Geoffrey M. Klineberg Bethan R. Jones KELLOGG, HANSEN, TODD, FIGEL & FREDERICK, P.L.L.C. 1615 M Street, N.W., Suite 400 Washington, D.C. 20036 (202) 326-7900 [email protected] [email protected]


December 23, 2020


TABLE OF CONTENTS Page

TABLE OF AUTHORITIES .................................................................................... ii

IDENTITY AND INTEREST OF AMICI CURIAE .................................................. 1

INTRODUCTION AND SUMMARY OF ARGUMENT ........................................ 2

ARGUMENT ............................................................................................................. 3

I. NSO DOES NOT QUALIFY FOR IMMUNITY UNDER THE FSIA, WHICH PROVIDES THE SOLE BASIS OF IMMUNITY FROM CIVIL SUIT FOR FOREIGN CORPORATIONS ........................................................................................... 3

A. Foreign Sovereign Immunity Before the FSIA Was a Matter of Federal Common Law ........................................................... 4

B. Congress Comprehensively Codified the Common Law in the FSIA ............................................................................................ 7

C. NSO Does Not Meet the Definition of a Foreign State and Is Therefore Not Eligible for Immunity from Suit Under the FSIA ................................................................................... 10

II. NON-NATURAL PERSONS SUCH AS NSO CANNOT CLAIM COMMON-LAW CONDUCT-BASED IMMUNITY ................... 12

A. Only Natural Persons Are Entitled to Status-Based and Conduct-Based Immunity ................................................................... 14

B. The District Court Erred in Applying Section 66(f) to This Case ............................................................................................. 18

C. No Authority Recognizes Foreign Official Immunity for Corporations or Other Entities ............................................................ 20

CONCLUSION ........................................................................................................ 24

CERTIFICATE OF COMPLIANCE


ii

TABLE OF AUTHORITIES Page

CASES

Alicog v. Kingdom of Saudi Arabia, 860 F. Supp. 379 (S.D. Tex. 1994) ............................................................................................ 11

Animal Sci. Prods., Inc. v. Hebei Welcome Pharm. Co., 138 S. Ct. 1865 (2018) ................................................................................... 17

Belhas v. Ya’alon, 515 F.3d 1279 (D.C. Cir. 2008) ................................................ 17

Butters v. Vance Int’l, Inc., 225 F.3d 462 (4th Cir. 2000) ................................. 10, 11

Chuidian v. Philippine Nat’l Bank, 912 F.2d 1095 (9th Cir. 1990) ............ 16, 17, 20

Corporacion Mexicana de Servicios Maritimos, S.A. de C.V. v. M/T Respect, 89 F.3d 650 (9th Cir. 1996) ....................................................... 8

Doğan v. Barak, 932 F.3d 888 (9th Cir. 2019) ...................................... 12, 17, 18, 20

Dole Food Co. v. Patrickson, 538 U.S. 468 (2003) ................................................... 9

Ivey for Carolina Golf Dev. Co. v. Lynch, 2018 WL 3764264 (M.D.N.C. Aug. 8, 2018) ............................................................................... 21

Kentucky v. Graham, 473 U.S. 159 (1985) ........................................................ 18-19

Lafontant v. Aristide, 844 F. Supp. 128 (E.D.N.Y. 1994) ....................................... 14

Lewis v. Mutond, 918 F.3d 142 (D.C. Cir. 2019) .............................................. 13, 19

Medellín v. Texas, 552 U.S. 491 (2008) .................................................................. 13

Moriah v. Bank of China Ltd., 107 F. Supp. 3d 272 (S.D.N.Y. 2015) ....................................................................................... 20, 21

Republic of Argentina v. NML Capital, Ltd., 573 U.S. 134 (2014) ......... 3, 11, 12, 24

Republic of Austria v. Altmann, 541 U.S. 677 (2004) ........................................... 3, 9


iii

Republic of Mexico v. Hoffman, 324 U.S. 30 (1945) ............................................... 13

Republic of Peru, Ex Parte, 318 U.S. 578 (1943) ................................................... 13

Salman v. Saudi Arabian Cultural Mission, 2017 WL 176576 (E.D. Va. Jan. 17, 2017) ................................................................................ 11

Samantar v. Yousuf, 560 U.S. 305 (2010) ............................................ 4, 7, 9, 10, 12, 17, 18, 19, 20

The Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch) 116 (1812) ............................................................................................................... 4

Sikhs for Justice v. Singh, 64 F. Supp. 3d 190 (D.D.C. 2014) ................................. 15

United States v. Sinovel Wind Grp. Co., 794 F.3d 787 (7th Cir. 2015)................... 12

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) ............................. 13

Yousuf v. Samantar, 699 F.3d 763 (4th Cir. 2012) ..........................13, 14, 15, 18, 21

STATUTES AND RULES

Foreign Sovereign Immunities Act of 1976, 28 U.S.C. § 1602 et seq.:

§ 1603 .......................................................................................................... 4, 9

§ 1603(b)(1) ..................................................................................................... 7

§ 1603(b)(2) ..................................................................................................... 8

§ 1603(b)(3) ................................................................................................. 8, 9

22 U.S.C. § 254d ...................................................................................................... 14

Fed. R. App. P. 29(a)(4)(E) ........................................................................................ 1

Fed. R. Civ. P. 19 ..................................................................................................... 10

Fed. R. Civ. P. 44.1 .................................................................................................. 17


iv

LEGISLATIVE MATERIALS

H.R. Rep. No. 94-1487 (1976) ................................................................................... 7

S. Rep. No. 94-1310 (1976) ....................................................................................... 9

INTERNATIONAL MATERIALS

Arrest Warrant of 11 April 2000 (Dem. Rep. of Congo v. Belg.), 2002 I.C.J. 3 (Feb. 14) ............................................................................. 14, 15

Church of Scientology Case, 65 ILR 193 (BGH 1978) (Ger.) ................................ 21

Draft Articles on the Responsibility of States for Internationally Wrongful Acts, Report of the International Law Commission on the Work of Its Fifty-Third Session, 19 UN GAOR Suppl. No. 10, UN Doc. A/56/10 (2001), reprinted in [2001] 2 Y.B. Int’l L. Comm’n 26, UN Doc. A/CN.4/SER.A/2001/Add. 1 ......................................................................... 16

Jaffe v. Miller, 95 ILR 446 (Can. Ont. C.A. 1993) .................................................. 21

Jones v. Ministry of Interior, [2006] UKHL 26 ....................................................... 21

Report of the International Law Commission to the General Assembly on the Work of Its Forty-Third Session at 18, July 19, 1991, U.N. Doc. A/46/10, https://legal.un.org/ilc/documentation/english/reports/a_46_10.pdf ........................................... 22, 23

State Immunity Act 1978, c. 33 (U.K.) ...................................................................... 9

United Nations Convention on Jurisdictional Immunities of States and Their Property, Dec. 16, 2004, U.N. Doc. A/RES/59/38, https://treaties.un.org/doc/source/RecentTexts/English_3_13.pdf ............................................................................... 21, 22, 23

Vienna Convention on Consular Relations, Apr. 24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261 .................................................................... 14


v

Vienna Convention on Diplomatic Relations, Apr. 18, 1961, 23 U.S.T. 3227, 500 U.N.T.S. 95 .................................................................. 14

OTHER MATERIALS

Actions Against Foreigners, 1 Op. Att’y Gen. 81 (1797) .......................................... 5

Br. for United States as Amicus Curiae Supporting Affirmance, Doğan v. Barak, 932 F.3d 888 (9th Cir. 2019) (No. 16-56704) ...................................................................................................... 12, 15

James Crawford, Brownlie’s Principles of Public International Law (9th ed. 2019) ..................................................................................... 9, 13

William S. Dodge, Foreign Official Immunity in the International Law Commission: The Meanings of “Official Capacity”, 109 AJIL Unbound 156 (2015) ..................................................................... 16

Hazel Fox & Philippa Webb, The Law of State Immunity 543 (rev. 3d ed. 2015) ............................................................................... 13, 15-16

Tom Grant, Article 2(1)(a) and (b), in The United Nations Convention on Jurisdictional Immunities of States and Their Properties: A Commentary (Roger O’Keefe & Christian J. Tams eds., 2013) ............................................................................................ 22

Chimène I. Keitner, Categorizing Acts by State Officials: Attribution and Responsibility in the Law of Foreign Official Immunity, 26 Duke J. Comp. & Int’l L. 451 (2016) ...................................... 16

Chimène I. Keitner, The Common Law of Foreign Official Immunity, 14 Green Bag 2d 61 (2010) .......................................................... 13

Chimène I. Keitner, The Forgotten History of Foreign Official Immunity, 87 N.Y.U. L. Rev. 704 (2012) .................................................... 4, 5

Chimène I. Keitner, Prosecuting Foreign States, 61 Va. J. Int’l L. (forthcoming 2021), https://papers.ssrn.com/sol3/ papers.cfm?abstract_id=3726827 .................................................................... 3


vi

Letter from Jack B. Tate, Acting Legal Adviser, U.S. Dep’t of State to Philip B. Perlman, Acting U.S. Att’y Gen., U.S. Dep’t of Justice (May 19, 1952), reprinted in 26 Dep’t St. Bull. 984 (1952) ............................................................................................... 5

Restatement (Second) of the Foreign Relations Law of the United States (Am. Law Inst. 1965) .......................................... 6, 7, 18, 19, 20

Restatement (Third) of the Foreign Relations Law of the United States (Am. Law Inst. 1987) .............................................................. 15

Restatement (Fourth) of the Foreign Relations Law of the United States (Am. Law Inst. 2018) .............................................................. 22

Sovereign Immunity Decisions of the Department of State from May 1952 to January 1977 (Michael Sandler et al. eds.), in 1977 Dig. U.S. Prac. Int’l L. 1017 .......................................................... 6, 7

Suits Against Foreigners, 1 Op. Att’y Gen. 45 (1794) .............................................. 5

Christian J. Tams, Preamble, in The United Nations Convention on Jurisdictional Immunities of States and Their Properties: A Commentary (Roger O’Keefe & Christian J. Tams eds., 2013) .............................................................................................................. 22

Ingrid Wuerth, Foreign Official Immunity Determinations in U.S. Courts: The Case Against the State Department, 51 Va. J. Int’l L. 915 (2011) ......................................................................................... 12


IDENTITY AND INTEREST OF AMICI CURIAE1

Amici are experts in the law of foreign sovereign immunity, including

foreign state and foreign official immunity, who have an interest in the correct

understanding and application of this body of law in U.S. courts.

Sarah H. Cleveland is Louis Henkin Professor of Human and Constitutional

Rights at Columbia Law School. She served from 2009 to 2011 as Counselor on

International Law to the Legal Adviser at the U.S. Department of State and from

2012 to 2018 as Co-Coordinating Reporter for the Restatement (Fourth) of the

Foreign Relations Law of the United States (Am. Law Inst. 2018).

William S. Dodge is Martin Luther King, Jr. Professor of Law and John D.

Ayer Chair in Business Law at the University of California, Davis, School of Law.

He served from 2011 to 2012 as Counselor on International Law to the Legal

Adviser at the U.S. Department of State and from 2012 to 2018 as a Reporter for

the Restatement (Fourth).

Chimène I. Keitner is Alfred & Hanna Fromm Chair in International and

Comparative Law at the University of California, Hastings College of the Law.

She served from 2016 to 2017 as Counselor on International Law to the Legal

1 Pursuant to Federal Rule of Appellate Procedure 29(a)(4)(E), counsel for

amici represent that no counsel for any of the parties authored any portion of this brief and that no entity, other than amici or its counsel, monetarily contributed to the preparation or submission of this brief.


2

Adviser at the U.S. Department of State and from 2013 to 2018 as an Adviser on

Foreign Sovereign Immunity for the Restatement (Fourth).

INTRODUCTION AND SUMMARY OF ARGUMENT

In 1976, Congress enacted the Foreign Sovereign Immunities Act (“FSIA”)

to codify the law of foreign state immunity from civil suit in U.S. courts. The Act

provides immunity to foreign states and their agencies and instrumentalities,

including corporations in certain circumstances. Corporations that do not fall

within the scope of the FSIA are not entitled to immunity in U.S. state or federal

courts. And, they cannot invoke alternative potential sources of jurisdictional

immunity based on their alleged connection to, or conduct on behalf of, a foreign

state because the FSIA is comprehensive on this topic.

Even if the FSIA did not comprehensively address the immunity of

corporations and other entities, NSO would not be entitled to conduct-based

immunity under federal common law because such immunity extends only to

natural persons. Federal common law and customary international law distinguish

between status-based immunity, like head-of-state immunity, and conduct-based

immunity, which applies to acts taken in an official capacity. Both kinds of

immunity apply only to natural persons, a fact confirmed by the sources on which

NSO relies. Amici are aware of no U.S. cases, foreign cases, international cases, or

other authorities supporting NSO’s argument that corporations may claim


3

conduct-based foreign official immunity. Simply put, there is no basis for NSO to

claim immunity from suit in this case.

ARGUMENT

I. NSO DOES NOT QUALIFY FOR IMMUNITY UNDER THE FSIA, WHICH PROVIDES THE SOLE BASIS OF IMMUNITY FROM CIVIL SUIT FOR FOREIGN CORPORATIONS

Congress enacted the FSIA in order to “clarify[] the rules that judges should

apply in resolving sovereign immunity claims and eliminat[e] political

participation in the resolution of such claims.” Republic of Austria v. Altmann, 541

U.S. 677, 699 (2004). “[T]o accomplish these purposes, Congress established a

comprehensive framework for resolving any claim of sovereign immunity.” Id.

(emphasis added). Because the FSIA is comprehensive, the Supreme Court has

held that courts may not supplement its provisions by developing additional rules

of immunity. See Republic of Argentina v. NML Capital, Ltd., 573 U.S. 134, 142

(2014) (rejecting foreign state’s claim of immunity from post-judgment discovery

because the FSIA provided for no such immunity). Rather, “any sort of immunity

defense made by a foreign sovereign in an American court must stand on the Act’s

text. Or it must fall.” Id. at 141-42.2

2 With respect to the separate question of criminal jurisdiction, the FSIA’s

provisions do not provide for immunity; the FSIA is properly construed to provide immunity only from civil proceedings. See Chimène I. Keitner, Prosecuting Foreign States, 61 Va. J. Int’l L. (forthcoming 2021), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3726827.


4

NSO concedes that it does not qualify as a “foreign state” under the FSIA.

See NSO Br. 42-43 (disclaiming any entitlement to “derivative” sovereign

immunity under the FSIA); ECF 62, at 9 (conceding it could “not claim immunity

for itself under the [FSIA]”); see also 28 U.S.C. § 1603 (defining eligible entities).

Its attempt to claim immunity outside the FSIA ignores the statute’s text and the

history that led to its enactment.

A. Foreign Sovereign Immunity Before the FSIA Was a Matter of Federal Common Law

Historical accounts of immunity for foreign states and entities often begin

with Chief Justice John Marshall’s opinion in The Schooner Exchange v.

McFaddon, 11 U.S. (7 Cranch) 116 (1812).3 Early suits generally involved in rem

3 In fact, the first notable dispute involving jurisdiction over a foreign public

ship of war arose over the Cassius in 1795. See Chimène I. Keitner, The Forgotten History of Foreign Official Immunity, 87 N.Y.U. L. Rev. 704, 729-37 (2012) (describing the litigation that prompted the Executive Branch to file its first, non-binding “suggestion” of immunity). NSO suggests (at 6-7) that the Attorney General recognized common-law conduct-based immunity for “foreign officials and other agents acting on the state’s behalf” “as early as 1797” (quoting Attorney General opinions cited by the United States in a pre-Samantar statement of interest). First, these opinions—and the U.S. statement—involved only claims to immunity by natural persons and are therefore irrelevant here. Second, the opinions did not indicate that the defendants could claim conduct-based immunity from suit; rather, they affirmed that the defendants were “on the same footing” with any non-diplomatic official with respect to their “suability.” See generally Keitner, 87 N.Y.U. L. Rev. at 712 (excavating court records and diplomatic correspondence from six cases involving claims to conduct-based foreign official immunity in the 1790s). The language NSO quotes advised the defendants to “answer” the plaintiffs’ actions by asserting a defense that they had acted within the scope of


5

actions against ships and their cargos and were governed largely by admiralty law.

But the rise of cross-border transactions and “the widespread and increasing

practice on the part of governments of engaging in commercial activities”

necessitated a framework for addressing claims to foreign sovereign immunity

beyond the admiralty context to “enable persons doing business with them to have

their rights determined in the courts.” Letter from Jack B. Tate, Acting Legal

Adviser, U.S. Dep’t of State to Philip B. Perlman, Acting U.S. Att’y Gen., U.S.

Dep’t of Justice (May 19, 1952), reprinted in 26 Dep’t St. Bull. 984-85 (1952).

Over time, the State Department developed a practice of “suggesting”

immunity in certain cases, while remaining silent in others. The State Department

formalized its approach to the question of immunity in 1952 in the Tate Letter,

which indicated that the United States would follow the “restrictive” theory of

immunity for foreign states, which restricts immunity to suits based on

governmental acts. Id. (indicating that, under the restrictive theory, “the immunity

of the sovereign is recognized with regard to sovereign or public acts (jure imperii)

of a state, but not with respect to private acts (jure gestionis)”). Between 1952 and

their lawful authority as agents of a foreign government. See id. at 723-24, 757; see also Suits Against Foreigners, 1 Op. Att’y Gen. 45 (1794) (suit against Victor Collot, a former governor of Guadeloupe); Actions Against Foreigners, 1 Op. Att’y Gen. 81 (1797) (suit against Henry Sinclair, “a person acting under a commission from the sovereign of a foreign nation”).


6

1976, the State Department made immunity determinations in 110 known cases.

See Sovereign Immunity Decisions of the Department of State from May 1952 to

January 1977 (Michael Sandler et al. eds.), in 1977 Dig. U.S. Prac. Int’l L. 1017,

1020. These decisions distinguished between corporations and officials. State-

owned corporations were denied immunity when the claims were based on their

commercial activities (e.g., Nos. 1, 9, 22, 36, and 47). Foreign officials, however,

were granted immunity—even when a foreign state or state-owned corporation

would not have been immune—if the officials were heads of state (e.g., Nos. 49

and 99) or if they acted in their “official capacities” (e.g., Nos. 97 and 98).

In 1965, the American Law Institute addressed whether corporations and

other entities benefit from a foreign state’s immunity in the Restatement (Second)

of Foreign Relations Law, which indicated in § 66(g) that the immunity of a

foreign state—along with applicable exceptions—extends to “a corporation created

under its laws and exercising functions comparable to those of an agency of the

state.” See Restatement (Second) of the Foreign Relations Law of the United States

§ 66(g) (Am. Law Inst. 1965) (“Restatement (Second)”). Consistent with

international law and State Department practice, the Restatement (Second) treated

corporations as distinct from natural persons in the context of foreign sovereign

immunity, addressing corporations in § 66(g) while addressing heads of state,


7

heads of government, foreign ministers, and other officials in § 66(b), (d), (e),

and (f), respectively.4

B. Congress Comprehensively Codified the Common Law in the FSIA

When the State Department’s role in making case-by-case suggestions

became untenable, Congress stepped in to codify the restrictive theory of sovereign

immunity and put foreign states on the same footing as private parties with respect

to their commercial activities. As part of its codification effort, Congress

specifically addressed the immunities of corporations and other entities by

describing various types of connections to the foreign state that would render the

entity immune. See H.R. Rep. No. 94-1487, at 6 (1976) (noting the FSIA’s purpose

“to provide when and how parties can maintain a lawsuit against a foreign state or

its entities in the courts of the United States”) (emphasis added). The text of the

FSIA reflects this legislative intent by defining an “agency or instrumentality of a

foreign state” to include “separate legal person[s], corporate or otherwise.” 28

U.S.C. § 1603(b)(1); see also Samantar v. Yousuf, 560 U.S. 305, 314 (2010)

(noting that “the Act specifically delimits what counts as an agency or

4 The FSIA’s definition of “agency or instrumentality” supersedes § 66(g),

as described in Part I.B. Part II discusses the current law governing status-based and conduct-based immunities of foreign officials and the effect of the FSIA on § 66(f).


8

instrumentality”). To come within the scope of the FSIA, the entity must be created

under the foreign state’s own laws. See 28 U.S.C. § 1603(b)(3) (providing that the

entity must not be a citizen of the United States or “created under the laws of any

third country”). In addition, a majority of the entity’s “shares or other ownership

interest [must be] owned by a foreign state or political subdivision thereof,” or the

entity must qualify as an “organ” of a foreign state or political subdivision. Id.

§ 1603(b)(2).5

Congress intended the FSIA to establish the only circumstances under which

a corporation or other entity could claim foreign sovereign immunity. As the

Senate Report accompanying the FSIA made clear, “[a]n entity which does not fall

within the definitions of sections 1603 (a) [defining “foreign state” to include

political subdivisions and agencies and instrumentalities of the foreign state] or

(b) [defining agencies and instrumentalities of a foreign state] would not be

5 Because the FSIA does not define the term “organ,” courts have had to

adopt different tests to determine whether an entity qualifies as an organ of a foreign state. See, e.g., Corporacion Mexicana de Servicios Maritimos, S.A. de C.V. v. M/T Respect, 89 F.3d 650, 655 (9th Cir. 1996) (finding that Pemex-Refining was an “organ” of Mexico under § 1603(b)(2) because, as the district court explained, it is “an integral part” of the state that “was created by the Mexican Constitution, Federal Organic Law, and Presidential Proclamation; it is entirely owned by the Mexican Government; is controlled entirely by government appointees; employs only public servants; and is charged with the exclusive responsibility of refining and distributing Mexican government property”). NSO does not (and could not) claim that it constitutes an “organ” of any state.


9

entitled to sovereign immunity in any case before a Federal or State court.” S. Rep.

No. 94-1310, at 15 (1976); see also Dole Food Co. v. Patrickson, 538 U.S. 468,

473-78 (2003) (holding that foreign corporation that did not satisfy the

requirements of § 1603 was not entitled to immunity despite other connections to a

foreign state). Thus, corporations and other entities that do not come within the

FSIA’s definition of a “foreign state” cannot claim immunity. See Altmann, 541

U.S. at 699.6

The Supreme Court confirmed this in Samantar. There, the Court concluded

that Congress did not “inten[d] to include individual officials within the meaning

of ‘agency or instrumentality.’” 560 U.S. at 316 (emphasis added). In doing so, the

Court noted that the words “entity,” “separate legal person,” and “organ” were not

typically used to refer to individuals and that § 1603(b)(3)’s requirements with

respect to corporate citizenship and creation could not be applied to natural persons

6 Other countries have taken different approaches to the immunity of

separate entities. Under the United Kingdom’s State Immunity Act 1978, for example, a separate entity is entitled to immunity only if “the proceedings relate to anything done by it in the exercise of sovereign authority” and a State would have been immune in the same circumstances. 1978, c. 33, § 14(2) (U.K.); see also James Crawford, Brownlie’s Principles of Public International Law 476 (9th ed. 2019) (noting that the United States takes “[a]n entirely different approach”). Congress made its own deliberate choice about when and how to exempt entities from the ordinary jurisdictional reach of U.S. state and federal courts, and that choice governs here.


10

at all. Id. at 315-16. The Court also observed that the “types of defendants listed”

in the FSIA “are all entities.” Id. at 317. This analysis makes clear that, while the

FSIA does not apply to natural persons, it does “cover[] [the] field” of immunity

with respect to corporations and other entities. Id. at 320. To paraphrase Samantar,

the immunity of entities was the “problem to which Congress was responding

when it enacted the FSIA.” Id. at 323.7

C. NSO Does Not Meet the Definition of a Foreign State and Is Therefore Not Eligible for Immunity from Suit Under the FSIA

NSO has abandoned any argument that it is entitled to “derivative”

immunity under the FSIA. See NSO Br. 42-43 (arguing that “‘[d]erivative

sovereign immunity’ is not . . . a distinct theory of immunity” but “merely another

name for conduct-based immunity”). And for good reason. The “derivative”

immunity concept comes from Butters v. Vance International, Inc., 225 F.3d 462

(4th Cir. 2000), in which the Fourth Circuit reasoned that a company “would be

entitled to derivative immunity under the FSIA” in an employment discrimination

7 NSO argues that failing to recognize immunity here would constitute an

“end run” around the FSIA’s protections for foreign states. See NSO Br. 40. But the Samantar Court rejected the argument that excluding officials from the FSIA’s scope would somehow circumvent the foreign state’s immunity. It noted that a case against a non-FSIA defendant might be dismissed because a foreign state is an indispensable party under Rule 19, or because the requested relief would run against a foreign state, thereby making the foreign state the proper defendant. 560 U.S. at 325. That is not the case here. See infra Part II.B (explaining when a foreign state should be considered the “real party in interest”).


11

suit if it were following Saudi Arabia’s orders not to promote the plaintiff. Id. at

466.8 This contradicts Congress’s clear intent to codify foreign state immunity

comprehensively in the FSIA—a point not addressed in the Butters opinion. And

even if Butters had been correct when it was decided, it has now been superseded

by NML Capital’s holding that courts may not supplement the text of the FSIA

with additional rules of state immunity. NML Capital, 573 U.S. 134.

Courts are not free to disregard the FSIA’s text when Congress has spoken

clearly on the issue, as it has on the immunity of corporations and other entities.

See id. at 141-42. Since NSO does not purport to be an agency or instrumentality

of a foreign state, its argument boils down to a claim that it should be treated as if

it were such an agency or instrumentality for immunity purposes, based on the

identities of its anonymous customers. If there were any doubt that this proposition

8 Case law arguably adopting a similar approach is so scant as to be virtually

non-existent. For example, an earlier district court decision that was summarily affirmed found that two natural persons were not liable for their alleged acts as guards because they had been paid directly by the Saudi consulate and had acted within the scope of their employment. Alicog v. Kingdom of Saudi Arabia, 860 F. Supp. 379, 384 (S.D. Tex. 1994). The district court’s grant of summary judgment as to these two defendants does not justify extending any form of jurisdictional immunity to NSO. In a later unpublished decision, the plaintiff had “concede[d]” that the defendant diplomatic and cultural mission “qualifie[d] as a ‘foreign state’ for purposes of the FSIA,” so the only question was whether his employment discrimination claim came within an enumerated exception to the FSIA. Salman v. Saudi Arabian Cultural Mission, 2017 WL 176576 (E.D. Va. Jan. 17, 2017) (citing Butters but not discussing or applying derivative immunity).


12

was ill-founded before NML Capital—which there should not have been—NML

Capital squarely forecloses this argument.

II. NON-NATURAL PERSONS SUCH AS NSO CANNOT CLAIM COMMON-LAW CONDUCT-BASED IMMUNITY

Even if Congress had not established a comprehensive regime for the

immunity of corporations and other entities by enacting the FSIA (which it did),

NSO would not be entitled to common-law conduct-based immunity because such

immunity applies only to natural persons. As the Supreme Court explained in

Samantar, the immunities of foreign officials are “properly governed by the

common law.” 560 U.S. at 325. The common law of foreign official immunity is

federal common law. See United States v. Sinovel Wind Grp. Co., 794 F.3d 787,

792 (7th Cir. 2015) (noting that Samantar “recognized some residual federal

common law of foreign sovereign immunity”).9 The federal common law of

9 Federal common law is for federal courts to make. This is so even though

the United States has argued in a different case before this Court that “courts have no authority to create federal common-law principles of foreign-official immunity, absent Executive Branch guidance.” Br. for United States as Amicus Curiae Supporting Affirmance at 25, Doğan v. Barak, 932 F.3d 888 (9th Cir. 2019) (No. 16-56704) (“U.S. Doğan Amicus Br.”). This Court did not decide in Doğan how much deference to give a case-specific suggestion of immunity by the State Department or how to treat Executive Branch guidance on foreign official immunity. 932 F.3d at 893. The claim that the State Department can itself make federal common law that binds the courts raises serious separation-of-powers questions. See Ingrid Wuerth, Foreign Official Immunity Determinations in U.S. Courts: The Case Against the State Department, 51 Va. J. Int’l L. 915, 954-67 (2011). To support its claim of lawmaking authority, the United States has relied


13

foreign official immunity is informed by customary international law. See Yousuf

v. Samantar, 699 F.3d 763, 773 (4th Cir. 2012) (noting that “immunity decisions

turn upon principles of customary international law”). And neither federal common

law nor customary international law extends the immunity accorded foreign

officials to non-natural persons.

With respect to foreign official immunity, both federal common law and

customary international law distinguish between status-based immunity (immunity

ratione personae) and conduct-based immunity (immunity ratione materiae). See

Lewis v. Mutond, 918 F.3d 142, 145 (D.C. Cir. 2019) (citing Chimène I. Keitner,

The Common Law of Foreign Official Immunity, 14 Green Bag 2d 61, 64 (2010)).10

on cases from the 1940s. See Republic of Mexico v. Hoffman, 324 U.S. 30 (1945); Ex parte Republic of Peru, 318 U.S. 578 (1943). But more recent decisions have confirmed that, absent a delegation from Congress, the Executive Branch lacks lawmaking powers even with respect to foreign relations law. See Medellín v. Texas, 552 U.S. 491, 532 (2008) (noting that the President has authority “to execute the laws, not make them”); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587 (1952) (“In the framework of our Constitution, the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker.”). This Court can choose to rely on the views of the United States with respect to the content of customary international law and the policies that should shape federal common law to the extent that it finds them persuasive, but it need not accede to the Executive’s claims of lawmaking authority.

10 See also Crawford, Brownlie’s Principles of Public International Law 471-72 (distinguishing between immunity ratione personae and immunity ratione materiae); Hazel Fox & Philippa Webb, The Law of State Immunity 543 (rev. 3d ed. 2015) (same).


14

The immunities of diplomatic and consular officials are governed by treaties and

statutes rather than common law.11 These different types of foreign official

immunity vary in their details, some of which are discussed below, but they have

one thing in common—they all apply only to natural persons.

A. Only Natural Persons Are Entitled to Status-Based and Conduct-Based Immunity

Under federal common law and customary international law, foreign heads

of state, heads of government, and foreign ministers enjoy status-based immunity

and are absolutely immune from suit while in office. See Yousuf, 699 F.3d at 769

(“A head-of-state recognized by the United States government is absolutely

immune from personal jurisdiction in United States courts unless that immunity

has been waived by statute or by the foreign government recognized by the United

States.”) (quoting Lafontant v. Aristide, 844 F. Supp. 128, 131-32 (E.D.N.Y.

1994)); Arrest Warrant of 11 April 2000 (Dem. Rep. of Congo v. Belg.), 2002 I.C.J.

3, 20-21, ¶ 51 (Feb. 14) (noting that “in international law it is firmly established

that . . . holders of high-ranking office in a State, such as the Head of State, Head

of Government and Minister for Foreign Affairs, enjoy immunities from

11 See Vienna Convention on Diplomatic Relations (VCDR), Apr. 18, 1961,

23 U.S.T. 3227, 500 U.N.T.S. 95; Vienna Convention on Consular Relations (VCCR), Apr. 24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261; see also 22 U.S.C. § 254d (implementing the VCDR).


15

jurisdiction in other States, both civil and criminal”). Status-based immunity ends

“after a person ceases to hold the office.” Arrest Warrant, 2002 I.C.J. at 25, ¶ 61;

see also Sikhs for Justice v. Singh, 64 F. Supp. 3d 190, 194 (D.D.C. 2014) (“The

day he left office, [the former Prime Minister of India] lost the absolute protection

of status-based head-of-state immunity.”). Only natural persons may hold the

positions of head of state, head of government, and foreign minister, and

accordingly, only natural persons are afforded status-based immunity.

Under federal common law and customary international law, lower ranking

officials and all former officials are entitled to conduct-based immunity for acts

taken in their official capacity. See Yousuf, 699 F.3d at 774 (“With respect to

conduct-based immunity, foreign officials are immune from ‘claims arising out of

their official acts while in office.’”) (quoting Restatement (Third) of the Foreign

Relations Law of the United States § 464 reporters’ note 14 (Am. Law Inst. 1987));

Sikhs for Justice, 64 F. Supp. 3d at 194 (indicating that former heads of state, heads

of government, and foreign ministers remain entitled to conduct-based immunity

“for official acts”); Arrest Warrant, 2002 I.C.J. at 25, ¶ 61 (noting that “a court of

one State may try a former Minister for Foreign Affairs of another State in respect

of acts committed . . . in a private capacity”); see also U.S. Doğan Amicus Br. 9

n.1 (noting that “all former foreign officials as well as current, lower-level officials

may be immune only for acts taken in an official capacity”); Fox & Webb, Law of


16

State Immunity 570 (indicating that “[i]mmunity ratione materiae, also known as

functional immunity, attaches to a person who acts on behalf of a State in relation

to conduct performed in their official capacity”). Amici are not aware of any

authority for the proposition that such conduct-based immunity extends to

corporations or other entities under either international law or federal common law.

“Official capacity” is a concept used in a variety of legal contexts, “and the

phrase may have a different meaning and scope depending on the context.”

William S. Dodge, Foreign Official Immunity in the International Law

Commission: The Meanings of “Official Capacity”, 109 AJIL Unbound 156, 157

(2015).12 In the context of foreign official immunity, this Court held in Chuidian v.

12 For example, as explained below, a foreign official who clearly exceeds

his authority does not act in an “official capacity” for purposes of immunity. Nevertheless, his acts are attributable to the foreign state for purposes of state responsibility under international law even if he exceeds his authority. See Draft Articles on the Responsibility of States for Internationally Wrongful Acts, art. 7, Report of the International Law Commission on the Work of its Fifty-Third Session, 19 UN GAOR Suppl. No. 10, at 43, UN Doc. A/56/10 (2001), reprinted in [2001] 2 Y.B. Int’l L. Comm’n 26, UN Doc. A/CN.4/SER.A/2001/Add. 1. Therefore, the attributability of an official’s act to the state does not immunize that person from personal liability. Id. art. 58 (“These articles are without prejudice to any question of the individual responsibility under international law of any person acting on behalf of a State.”); see also Chimène I. Keitner, Categorizing Acts by State Officials: Attribution and Responsibility in the Law of Foreign Official Immunity, 26 Duke J. Comp. & Int’l L. 451, 459 (2016) (noting that “the mere attributability of an act to the state is an inadequate touchstone, both conceptually and doctrinally, for determining whether a foreign official is entitled to claim conduct-based immunity for that act”).


17

Philippine National Bank, 912 F.2d 1095 (9th Cir. 1990), that conduct-based

immunity extends to a foreign official “for acts committed in his official capacity,”

id. at 1103, but not to “an official who acts beyond the scope of his authority,” id.

at 1106. Although Chuidian’s holding that the FSIA applies to foreign officials,

see id. at 1103, was overruled in Samantar, the Supreme Court noted that the

distinction between acts committed in an official capacity and acts beyond the

scope of authority “may be correct as a matter of common-law principles.”

Samantar, 560 U.S. at 322 n.17 (quoting Chuidian, 912 F.2d at 1103, 1106).

Whether a foreign official was acting in his official capacity for purposes of

immunity depends in part on the foreign law defining his authority. A court may

consider the views of a foreign government on this question, see, e.g., Belhas v.

Ya’alon, 515 F.3d 1279, 1284 (D.C. Cir. 2008) (relying on statement by Israeli

ambassador that Israeli official acted within the scope of his authority), as well as

the allegations in the complaint, see, e.g., Doğan, 932 F.3d at 894 (relying on

allegations in complaint that Israeli defense minister had authority to direct Israeli

troops). If disputed, the question of an official’s authority under foreign law is a

question of law for the U.S. court to decide. Fed. R. Civ. P. 44.1; see also Animal

Sci. Prods., Inc. v. Hebei Welcome Pharm. Co., 138 S. Ct. 1865, 1869 (2018)

(“A federal court should accord respectful consideration to a foreign government’s

submission [on the interpretation of its own law], but is not bound to accord


18

conclusive effect to the foreign government’s statements.”). Whether an

individual’s act is considered official for purposes of conduct-based immunity may

also turn on the character of the act and whether international law and U.S.

domestic law recognize the act as one that can be considered “official.”13

B. The District Court Erred in Applying Section 66(f) to This Case

Although the district court correctly rejected NSO’s claim of immunity, it

mistakenly looked to § 66(f) of the Restatement (Second) to define the contours of

conduct-based immunity. See ER10-12. This reliance was error because § 66(f)

properly applies only “if the effect of exercising jurisdiction would be to enforce a

rule of law against the state,” Restatement (Second) § 66(f). But Samantar held

that, when “the state is the real party in interest,” the FSIA necessarily governs

because “actions against an official in his official capacity should be treated as

actions against the foreign state itself.” 560 U.S. at 325 (citing Kentucky v.

13 For example, the Fourth Circuit has held that, “as a matter of international

and domestic law, jus cogens violations are, by definition, acts that are not officially authorized by the Sovereign,” Yousuf, 699 F.3d at 776, whereas this Court has declined to recognize a jus cogens exception to foreign official immunity, at least when the U.S. government has filed a suggestion of immunity, Doğan, 932 F.3d at 896-97.


19

Graham, 473 U.S. 159, 166 (1985)). The FSIA has thus superseded § 66(f), just

has it has superseded several other subsections of § 66.14

Section 66(f) did not purport to be a complete statement of the

circumstances under which conduct-based immunity was available to foreign

officials.15 And, today, the law clearly extends conduct-based immunity to foreign

officials who acted in an official capacity, not just to foreign officials who are sued

in an official capacity as a stand-in for the state.16 Simply put, § 66(f) does not

apply in cases where the defendant is sued in a personal capacity, and it has been

superseded by the FSIA in cases where the defendant is sued in an official capacity

because the state is the real party in interest.

14 Specifically, the FSIA has superseded subsections (a) (“the state itself”),

(c) (“its government or any governmental agency”), (f) (foreign officials “if the effect of exercising jurisdiction would be to enforce a rule of law against the state”), and (g) (“a corporation created under its laws and exercising functions comparable to those of an agency of the state”). Only subsections (b), (d), and (e), dealing with the status-based immunity of foreign heads of state, heads of government, and foreign ministers, respectively, are still governed by federal common law today.

15 Section 66 was expressly limited to situations to which “[t]he immunity of a foreign state” extends. Restatement (Second) § 66.

16 See supra pp. 15-18. In Samantar, the Supreme Court “express[ed] no view on whether Restatement § 66 correctly sets out the scope of the common-law immunity applicable to current or former foreign officials.” 560 U.S. at 321 n.15. In Lewis v. Mutond, the D.C. Circuit applied § 66(f) based solely on the agreement of the parties and “without deciding the issue.” 918 F.3d at 146.


20

Doğan is not to the contrary. Although Doğan quoted § 66(f), this Court

looked specifically to the capacity in which the defendant had acted and not to the

capacity in which he had been sued. See Doğan, 932 F.3d at 894 (noting that the

defendant acted under actual or apparent authority); see also Chuidian, 912 F.2d at

1106 (asking whether the defendant was “acting in his official capacity”). Had

Doğan looked instead to the capacity in which the defendant was sued, it would

have denied the immunity defense because the defendant had been sued in his

personal capacity, and Israel was not the real party in interest. The approach that

this Court actually applied in Doğan and Chuidian, asking whether the defendant is

immune from suit because he acted in his “official capacity,” is the correct one.

But that approach does not apply to corporations.

C. No Authority Recognizes Foreign Official Immunity for Corporations or Other Entities

United States cases consistently describe foreign official immunity as

extending to “individuals” rather than entities. See, e.g., Samantar, 560 U.S. at 322

(noting that “in some circumstances the immunity of the foreign state extends to an

individual for acts taken in his official capacity”); Doğan, 932 F.3d at 893 (noting

that “[c]ommon-law foreign sovereign immunity extends to individual foreign

officials”). Indeed, NSO’s claim that conduct-based immunity also extends to

corporations is contradicted by the very sources it cites (at 12). In Moriah v. Bank

of China Ltd., 107 F. Supp. 3d 272 (S.D.N.Y. 2015), for example, the district court


21

noted that conduct-based immunity “extends beyond current and former

government officials to individuals acting as an agent for the government.” Id. at

277 (emphasis added). And in Ivey for Carolina Golf Development Co. v. Lynch,

2018 WL 3764264 (M.D.N.C. Aug. 8, 2018), the district court described conduct-

based immunity as based on the idea that “any act performed by the individual as

an act of the State enjoys the immunity which the State enjoys.” Id. at *3 (quoting

Yousuf, 699 F.3d at 774) (emphasis added).

With respect to international law, NSO cites three foreign decisions (at 13-

14), but each of those cases involved claims against natural persons, not

corporations. See Jones v. Ministry of Interior, [2006] UKHL 26 (claims against

Saudi official); Jaffe v. Miller, 95 ILR 446 (Can. Ont. C.A. 1993) (claims against

Florida officials); Church of Scientology Case, 65 ILR 193 (BGH 1978) (Ger.)

(claims against U.K. official). Amici are aware of no foreign decisions that have

extended the immunities of foreign officials to cover foreign corporations.

NSO also relies (at 14) on the United Nations Convention on Jurisdictional

Immunities of States and Their Property, Dec. 16, 2004, U.N. Doc. A/RES/59/38

(“U.N. Convention”), https://treaties.un.org/doc/source/RecentTexts/English_3_13.

pdf, and specifically upon Article 2(1)(b)(iv)’s reference to “representatives of the


22

State acting in that capacity.”17 But, as the leading commentary on the Convention

explains, this provision identifies a category of “natural persons to be treated as a

‘State’ for the purposes of the Convention.” Tom Grant, Article 2(1)(a) and (b), in

The United Nations Convention on Jurisdictional Immunities of States and Their

Properties: A Commentary 52 (Roger O’Keefe & Christian J. Tams eds., 2013)

(emphasis added); see also id. (“The word [‘representatives’] is intended to refer to

all individual state functionaries.”) (emphasis added). This interpretation is

reinforced by the commentary to the treaty’s precursor, the 1991 Draft Articles on

Jurisdictional Immunities of States and Their Property. See Report of the

International Law Commission to the General Assembly on the Work of Its Forty-

Third Session at 18, July 19, 1991, U.N. Doc. A/46/10 (“Draft Articles on

17 The U.N. Convention has not been ratified by the United States or even

entered into force for other countries. See Restatement (Fourth) of the Foreign Relations Law of the United States § 451 reporters’ note 1 (Am. Law Inst. 2018) (discussing status of U.N. Convention). The Convention must be approached with caution as evidence of state practice or opinio juris in determining the content of customary international law, because the International Law Commission sought not just to codify but also to develop international law. See U.N. Convention, pmbl. (referring to “codification and development of international law”); see also Christian J. Tams, Preamble, in The United Nations Convention on Jurisdictional Immunities of States and Their Properties: A Commentary 30 (Roger O’Keefe & Christian J. Tams eds., 2013) (“[The Preamble] does not indicate which aspects of the Convention codify rules of international law . . . and which amount to the development of international law in areas in which ‘the law has not yet been sufficiently developed in the practice of States.’”).


23

Jurisdictional Immunities”), https://legal.un.org/ilc/documentation/english/reports/

a_46_10.pdf. NSO quotes this earlier commentary in its brief (at 14), citing

Article 2, Commentary (18) for the proposition that actions against a State’s

representatives are essentially proceedings against the State. But, in the prior

paragraph, the commentary makes clear that representatives “encompasses all the

natural persons who are authorized to represent the State in all its manifestations.”

Draft Articles on Jurisdictional Immunities art. 2, Commentary (17) (emphasis

added).

Both the U.N. Convention and the Draft Articles that preceded it address the

potential immunities of corporations and other entities separately from those of

foreign officials or representatives. The U.N. Convention extends state immunity

to “agencies or instrumentalities of the State or other entities, to the extent that they

are entitled to perform and are actually performing acts in the exercise of sovereign

authority of the State.” U.N. Convention art. 2(1)(b)(iii); see also Draft Articles on

Jurisdictional Immunities art. 2(1)(b)(v) (similar). The fact that there are separate

provisions for entities and natural persons confirms that entities are not eligible for

immunities accorded to “representatives of the State.”

In sum, there is no support in either U.S. case law or in international law for

the proposition that foreign official immunity extends beyond natural persons to

cover corporations like NSO.


24

CONCLUSION

Congress comprehensively addressed the immunity of corporations and

other entities in the FSIA. And, as the Supreme Court held in NML Capital,

Congress’s decision precludes further judicial development. Even if that were not

so, foreign official immunity is limited to natural persons under both international

law and federal common law.

December 23, 2020

Respectfully submitted, /s/ Geoffrey M. Klineberg Geoffrey M. Klineberg Bethan R. Jones KELLOGG, HANSEN, TODD, FIGEL & FREDERICK, P.L.L.C. 1615 M Street, N.W., Suite 400 Washington, D.C. 20036 (202) 326-7900 [email protected] [email protected]



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